Anderson Ng'ang'a Maina & 5 others v Republic

4. b) The Learned trial Magistrate erred in law and in fact in failing to appreciate that the key ingredient of the counts against the Appellant was in fact missing and hence arrived at a wrong determination. c) The Learned Magistrate erred in law and fact in applying the wrong principles of Law in its determination on the counts against the Appellant and hence arriving at a wrong decision. d) The Learned Magistrate erred in law and in fact in totally disregarding the Appellant's sworn defense hence arriving at a wrong decision. e) The Learned trial Magistrate totally failed to consider the Appellants submissions on record leading to a wrong decision. The parties to this appeal elected to file submissions which they relied on entirely at the hearing of the appeal. 1st Appellants Case 5. According to the 1st appellant the prosecution failed to prove its case beyond a reasonable doubt and that the trial court failed to appreciate that essential ingredients of the offences were not proved. 6. The appellant also contended that the court erred by applying wrong principles of law in the analysis of evidence and the conclusions drawn therefrom. 7. The 1st appellant also submitted that the trial court disregarded his sworn defense. 8. The appellant further submitted that this being a first appeal, the court is obliged to re-evaluate the entire evidence tendered before the subordinate court and draw its own conclusions from the evidence. 9. According to the 1st appellant the charges revolved around three sets of payment vouchers and their corresponding transport analysis sheets, namely Payment Voucher No. 179531 dated 9th June 2009 for Kshs. 363,615.00, Payment Voucher No. 165260 dated 30th March 2009 for Kshs. 493,339.00, and Payment Voucher No. 165242 dated 31st March 2009 for Kshs. 264,789.00. 10. The amounts were derived from several invoices which were supported by Receiving Advice documents. It was alleged that some of the Receiving Advices attached to those invoices had been altered by changing the names of transporters to that of Bernard Mungai, the 4th accused. 11. With respect to Payment Voucher No. 179531, the appellant’s position was that although an alteration was detected on Receiving Advice No. 897949 relating to a sum of Kshs. 5,445.00, the issue was reported by him before payment was made. 12. He went on to submit that the voucher was consequently rejected and no money was paid out. The 1st appellant maintained that he was the one who raised the alarm by reporting the alteration to the Verification and Examination Auditor, which report was escalated to management. Following this, the Chief Accountant ordered an audit. The appellant argued that it was therefore erroneous for the trial court to find him culpable in respect of a voucher that was never paid and whose rejection followed his own report. 13. As regards Payment Vouchers Nos. 165260 and 165242, the appellant acknowledged that the vouchers were paid and that alterations were later discovered on Receiving Advice Nos. 144922 and 173404 respectively. However, his case was that the alterations were not obvious and escaped detection by multiple senior officers and departments involved in the payment process. Evidence showed that the vouchers passed through inventory, operations, verification and examination, internal audit, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 2

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authorization, and passing for payment, with several senior officers appending their signatures without noticing any irregularity. The alterations were only discovered during a subsequent special audit ordered months later. 14. The appellant emphasized that under the Managing Director’s Circular C.26/4 dated 26th October 1993 and other relevant circulars, responsibility for ensuring the genuineness of documents lay with several officers, including inventory accountants, verification and examination officers, authorising officers, and auditors. He contended that the trial court erred in finding that he had final authority over payments, contrary to both documentary evidence and witness testimony showing that final authority lay with senior management officers above his rank. 15. On criminal intent, the appellant maintained that there was no evidence that he altered any document or that he knew of the alterations at the time the vouchers were processed. 16. He argued that the payment vouchers and analysis sheets themselves were accurate, properly tabulated, and free from alteration, and that the alterations were confined to the Receiving Advices. 17. According to him Evidence from several prosecution witnesses suggested that alterations could have occurred at the inventory section and that specific individuals were mentioned as having made or been associated with alterations, yet no investigations were conducted against them. 18. The appellant further pointed out that the document examiner did not examine the altered Receiving Advices and that the investigating officer failed to direct such examination despite instructions from the Chief Accountant. 19. The 1st appellant also highlighted evidence that funds wrongly paid were later recovered from subsequent invoices and paid to the rightful transporters, a fact he argued was confirmed by the Chief Accountant. 20. He argued that this negated any inference of fraudulent intent on his part. He further complained that the prosecution failed to produce certain audit reports by a three-member audit team which were acknowledged by witnesses to exist and which were relevant to the issues before court. 21. On procedure, the 1st appellant submitted that the trial magistrate failed to consider his sworn defense, ignored material evidence from prosecution witnesses that exculpated him, and failed to address or analyse his written submissions and the authorities cited therein. He further contended that the trial court impermissibly shifted the burden of proof to him, instead of requiring the prosecution to prove its case beyond reasonable doubt. 22. In conclusion, the appellant’s case was that the evidence on record did not establish criminal intent, knowledge of alterations, or unlawful authority on his part, and that the trial court overlooked material facts and misapplied the law. He therefore urged the appellate court to find that the appeal had merit, to quash the convictions and sentences imposed, and to acquit him of all the charges. 2nd Appellant’s Case 23. In his appeal, the 2nd appellant challenged the trial court’s findings on several grounds, contending that the court erred in law and fact in concluding that the elements of the offence of Making a false document under section 357(a) of the Penal Code had been proved. 24. He invoked the duty of a first appellate court to re-evaluate the evidence afresh and reach its own independent conclusions, relying on established authorities including Okeno v Republic {2024} KEHC2894 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 3

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25. According to the 2nd appellant the offence under Section 357(a) requires proof that a document was made without lawful authority or excuse and that it was made with intent to defraud or deceive. He asserted that the essential ingredients of the offence are proof of the act of making the document, lack of authority, and the requisite criminal intent. 26. On the question of authority, the appellant maintained that the evidence on record demonstrated that he was authorized to prepare Transport Analysis Sheets and Payment Vouchers as part of his duties at the National Cereals and Produce Board. 27. It was not disputed that he was employed in January 2009 and that, at the material time, he had been assigned to assist in the Transport Payments Section due to the urgency of processing transporters’ payments. His role, as explained in his testimony and confirmed by his immediate supervisor, included preparation and signing of the relevant documents. 28. The appellant pointed to Circular No. C26/4 dated 26th October 1993, which governed the processing of transporters’ payments and authorized Transport Accounts Clerks, under supervision, to prepare such documents. No prosecution witness testified that the 2nd appellant lacked authority, and the trial court itself acknowledged that preparation of Transport Analysis Sheets fell within his mandate. 29. Regarding intent to defraud or deceive, the appellant argued that the trial court failed to establish this essential element. 30. The prosecution evidence showed that some Receiving Advice notes had been altered, but no evidence was led to show that the appellant altered them or had knowledge of the alterations. 31. The appellant stated that he did not notice any alterations, and this position was consistent with the evidence of senior officers, including the Operations Manager, who also failed to detect the alleged alterations despite handling the same documents. 32. The appellant contended that, at most, the evidence suggested possible negligence or lack of due diligence, which could not amount to criminal intent under Section 357(a) of the Penal Code. 33. The appellant further pointed out that responsibility for verifying the genuineness and accuracy of documents lay with other officers in the payment process, including the Transport Accountant and the Inventory Section, as set out in the governing Circular and as confirmed by prosecution witnesses. 34. He noted that internal disciplinary proceedings had been initiated against him on grounds of lack of due diligence, reinforcing the position that the issue was administrative rather than criminal. 35. He also argued that investigations failed to establish who altered the Receiving Advice notes, raising concerns of selective prosecution given that several officers handled the same documents. 36. The 2nd appellant also highlighted an inconsistency in the trial court’s findings, noting that he was acquitted on counts of obtaining money by false pretences on the basis that he did not receive any money. He argued that, in the absence of any benefit or gain, there was no discernible motive to defraud or deceive. 37. He further challenged the differential treatment between himself and the 5th accused, despite evidence that they performed similar duties at the same stage of the payment process. 38. On the burden of proof, the appellant submitted that the prosecution failed to discharge its obligation to prove the case beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 4

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39. He maintained that the failure to prove intent, knowledge of alterations, or lack of authority created serious doubt as to his guilt and he ought to have been accorded the benefit of doubt. 40. In conclusion, the appellant’s case was that the prosecution failed to prove the essential elements of the offences under section 357(a) of the Penal Code. 41. He urged this court to find that the convictions were unsafe, allow the appeal, set aside the convictions on counts 1, 2, 4 and 5, and order his acquittal, together with a refund of the fine paid. Respondent’s Submissions 42. The respondents through Ms Ogega indicated that they had filed submissions but upon checking on the CTS the court was not able to find them and neither was there a copy in the court file. 43. However, the court took into account the expression by the respondents that they were opposed to the appeal and thus supported the conviction and sentence. 44. The court has weighed the evidence tendered by the prosecution and the submissions by the appellants carefully in arriving at its decision in this appeal. Summary of the Prosecution’s Case 45. The prosecution called a total of 26 witnesses who testified in support of the charges, 46. PW1 Ambrose Muinde, stated that he is an Assistant Internal Auditor at the National Cereals and Produce Board (NCPB), where he has worked for eighteen years as an auditor. 47. He gave a detailed explanation of the NCPB transport system, stating that transportation of produce between depots is carried out by registered transporters whose details are kept in a transporters’ register. He explained that movement of goods is authorized through a transfer order approved by the Operations Manager, after which a dispatch advice is raised at the dispatching depot upon loading of the goods. The dispatch advice contains the name of the transporter, driver, commodity, depots of dispatch and receipt, lorry registration number, quantity transported, and reference to the transfer order. Once signed by the stores clerk, the dispatch advice is entered into stock records and stock cards, the lorry is recorded at the gate and weighed, and the driver is issued with a dispatch advice attached to a receiving advice to be completed at the receiving depot after confirmation and off-loading. These documents are serialized, produced in four copies, and the transporter’s red copy is used for invoicing. 48. PW1 testified that upon receipt of an invoice, the Chief Accountant verifies the same by confirming receipt of goods through dispatch and receiving records and stock cards, after which payment is authorized and made either by cheque or in equivalent stock. 49. PW1 identified all the five accused persons in court and stated that the 1st accused was a payments clerk in the accounts section at NCPB, the 2nd accused worked in the inventory accounts section, the 3rd accused was the transport payments accountant, the 4th accused Bernard Mungai was a registered transporter, and the 5th accused was an accounts supervisor in the transport payments section. PW1 went on to state that on 23 June 2009 he received a memo from the Chief Accountant, Cornel Ngelechei, raising concerns over falsification of transport documents involving the 4th accused, Bernard Mungai, and directing the internal audit, credit, and security managers to conduct a detailed audit of all payments made to the 4th accused between 1st July 2008 and 23rd June 2009. The audit reviewed payments between 1st July 2008 and 31st July 2009 and established that the 4th accused had been paid a total of Kshs. 17,278,553 and had unpaid invoices amounting to Kshs. 6,392,038, with one payment https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 5

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specifically queried, leading to investigations into three transactions involving Kakamega/Chavakali, Machakos, and Nakuru. 50. PW1 then gave detailed evidence on the Kakamega–Chavakali transaction, the Machakos transaction, and the Nakuru transaction, in which he demonstrated through dispatch advices, receiving advices, transport analysis sheets, invoices, payment vouchers, cheques, stock records, stock cards, weighbridge tickets, and transporter registers that in each instance the transporter’s red copy of the receiving advice was altered to substitute the name of the genuine transporter with that of the 4th accused, alter vehicle registration numbers, routes, product descriptions, product codes, and dates, and that payments were processed and made to the 4th accused based on those altered documents, even though the original brown depot copies and stock records confirmed that the goods were transported by other registered transporters. PW1 further testified that cheques number 266073 dated 2 April 2009 for Kshs. 264,789 and cheque number 266070 dated 2 April 2009 for Kshs. 493,339 were both issued in the name of the 4th accused and cleared through NCPB’s Kenya Commercial Bank account number 1107165679 at Moi Avenue Branch on 6 April 2009, and that the 4th accused personally collected and signed for those cheques at the NCPB cash office. 51. PW1 concluded his evidence by stating that the three transactions amounted to fraudulent claims arising from alterations of transport documents at the NCPB head office in favour of the 4th accused, that NCPB suffered financial loss because it paid the 4th accused while remaining liable to pay the genuine transporters, and that he prepared and submitted an internal audit report reference number 1A/112 dated 11 August 2009 to the Chief Accountant in accordance with NCPB Circular C35/4 dated 26 October 1993 and Circular C26/4. He produced all documents referred to in his testimony as exhibits MFI.1 to MFI.10. 52. PW1 was cross-examined by Mr. Kiprono, during which he stated that the transport documentation process, confirmed that the transporter’s red copy of the receiving advice is used for invoicing, and stated that alterations to the red copy of receiving advice number 173404 occurred within the finance department after Pajaber Hauliers Limited had submitted its invoice dated 10 January 2009. He testified that Pajaber Hauliers Limited was entitled to Kshs. 90,066 but was not paid, and that the altered receiving advice was instead used to pay the 4th accused. He further stated that although he could not identify the specific officer who made the alterations, the responsibility lay within the transport payments section, and that the 1st, 2nd, and 3rd accused were required under NCPB procedures to ensure that all documents tallied before payment. He stated that the Nakuru transaction originally involved Summit Core Line Company transporting 670 bags of CAN fertilizer on 9 October 2007 and that alterations later converted the transaction to DAP fertilizer and attributed it to the 4th accused. He testified that the Board lost money and that recovery from the 4th accused was recommended but not effected. 53. PW1 was further cross-examined by Mr. Muilu, during which he explained the roles of the inventory accounts section, transport payment section, verification section, and chief accountant, and testified that multiple officers across departments were involved in processing transport payments. He stated that certain alterations were not easily detectable, that the transactions constituted fraud, and that although previous preliminary audit reports dated 17 July 2009 and 29 July 2009 existed, his final audit report dated 11 August 2009 was comprehensive and not intended to victimize any accused person. 54. PW1 was then cross-examined by Mr. Kariuki, during which he explained the transporter registration process, stating that registration required submission of documents and payment of a registration fee of Kshs. 1,000 per vehicle. He testified that invoices are not altered, that payment is based on figures in the transport analysis sheet, and that the 4th accused’s invoices passed through all procedural stages before payment. He further testified that during the first audit the 4th accused was asked to produce https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 6

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delivery documents and that a preliminary audit report had recommended that if satisfied, the 4th accused be paid. 55. PW1 was finally cross-examined by Mr. Ngaiwa, during which he testified that the 5th accused was employed in January 2009 and was under probation at the time of the March 2009 transactions, working under supervision. He stated that Circular C26/4 placed ultimate responsibility for accuracy of transport payments on the Chief Accountant, that the alterations in receiving advice number 897949 related to the Chavakali transaction, and that both the transport payment accountant and clerks were under a duty to exercise due diligence. 56. PW2, Mbwana Munyi Kombo stated that he was a records clerk with the National Cereals and Produce Board (NCPB) and had served in that same position since 2009, then stationed at the Mombasa depot. He explained that in 2009 NCPB was dispatching maize from Mombasa to various parts of the country using dispatch advice documents. The process involved the depot manager first confirming that a transporter was registered, after which an order would be issued, received by PW2, and a dispatch advice prepared to authorize loading of the lorry. 57. PW2 identified the accused persons in court, stating that he knew the 2nd accused as his colleague at the Mombasa depot, whom he still met at headquarters, knew the 3rd accused who was an accountant in the Mombasa area, and also knew the 5th accused as a colleague, but did not know the 1st accused. He testified that on 3 January 2009, while on duty, he dispatched white maize packed in 90-kilogram bags using Dispatch Advice No. 173404 to transporter Bajaba. The truck used was registration number KBD 436 with trailer number ZC 4555, driven by Mutito Nzuki, ID number 12648890, telephone number 0712341034. A total of 305 bags were dispatched to Machakos depot. He produced the dispatch advice as Prosecution Exhibit 7(a). He also filled in the stock card to reflect the dispatch, showing that there had been 1,701 bags in store and that 1,396 bags remained after dispatching the 305 bags, which stock card was produced as Prosecution Exhibit 7(c). He explained that four copies of the dispatch advice were generated: the first copy, white in colour, was retained at the depot; the second copy was red and went with the transporter; the third copy was green; and the fourth copy was brown and remained as the book copy. He further identified a receiving advice bearing the same number 173404 for receipt of the 305 bags of maize at Machakos, produced as Prosecution Exhibit 7(d), but stated that he did not know that document. 58. PW2 was first cross-examined by Mwilu, during which he stated that the transporter used the red copy of the dispatch advice to claim payment and that NCPB did not send its copies to headquarters to assist in payment, nor did they confirm whether goods reached their destination. 59. He was then cross-examined by Wabale, where he clarified that dispatch advice was in four differently colored copies, that the first copy went to the receiving depot, and that follow-up on receipt of goods was done by other officers, particularly the manager. 60. He was further cross-examined by Kairuki, during which he stated that he filled and signed the stock card at the end of his shift and also signed the dispatch advice, and that when releasing goods, they only dealt with the driver and turnboy and not the transporter. 61. PW3, Erick Omore Machora stated that he was a shipping clerk with NCPB stationed at the Mombasa depot. His duties included clearing and forwarding goods, storage, and dispatch. He explained that in the dispatch process he first sought authority to load from the depot manager, which authority was given to the transporter and then brought to him together with the details of the driver and the transporting vehicle, after which he filled the dispatch advice. He stated that the dispatch advice comprised copies in red, green and brown. He testified that he did not know any of the accused persons in the dock. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 7

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62. PW3 further stated that on 2 September 2009, two CID officers went to the Mombasa depot and interrogated him concerning a dispatch advice he had issued. He identified Dispatch Advice serial number 144922, produced as Exhibit 9(b), which he had issued to Summit CDF for the dispatch of 670 bags of CAN fertilizer to Nakuru using railway wagon number CLBR 56008. He stated that he entered the quantity dispatched into the stock card, which he produced in court as part of the exhibit. He further testified that the brown copy of the dispatch advice was forwarded together with the red copy, and that he also produced a receiving advice, Exhibit 9(n), which he had issued in blank to Summit CDF. He stated that the information on the receiving advice should have been the same as that on the dispatch advice but pointed out several discrepancies: the dispatch advice was dated 9 October 2007 while the receiving advice was dated 23 March 2009; the dispatch advice indicated wagon number CLBR 56008 while the receiving advice indicated a truck number; the dispatch advice was issued to Summit CDF while the receiving advice was issued to B. Muigai; the dispatch advice related to CAN fertilizer while the receiving advice related to DAP fertilizer; and the product code on the dispatch advice was 7202 whereas the product code on the receiving advice was 7201. 63. PW3 was cross-examined by Mwilu, during which he stated that he did not know who received the fertilizer, did not know where authorization for receipt was made, and that it was not his duty to follow up on receipt of goods. 64. He was then cross-examined by Wabale, where he stated that he gave the transporter the red copy of the dispatch advice to attach black copies of the receiving advice of a similar serial number and that he did not know what documents were sent back thereafter. 65. PW4, Kiprotich Ngeleabey stated that he worked at NCPB and in 2009 was the Chief Accountant, in charge of the finance department and a signatory to payment vouchers, and that he had served NCPB for 23 years. He further stated that he was currently the Acting Managing Director. He identified the accused persons, stating that the 1st accused was a clerk in the transport section, the 2nd accused worked in the inventory section, the 3rd accused was the accountant in the transport and payment section, the 4th accused was one of NCPB’s transporters, and the 5th accused also worked in the transport section. 66. PW4 testified that in June 2009 it was brought to his attention that a payment voucher had been prepared using supporting documents belonging to other transporters. Attached to it was Receiving Advice No. P97949, produced as Prosecution Exhibit 3(a), which was attached to Payment Voucher No. 179531 dated 9 June 2009, payable to the 4th accused and produced as Prosecution Exhibit 3(d). He observed obvious alterations on the transporter’s name to that of the 4th accused. He stated that the receiving advice existed in four copies and that another copy he saw bore the name A.O. Bayusuf as the transporter and was the red copy, produced as Exhibit 4(a), while all other details were the same. 67. PW4 stated that he suspended the transporter and wrote a letter dated 23 June 2009 to the operations manager, produced as Prosecution Exhibit 1, and instructed the auditor and security manager to investigate the 4th accused’s invoices and suspended further payments. Investigations revealed that the receiving advice had earlier been processed through Payment Voucher No. 165936 dated 4 May 2009, produced as Exhibit 2(e), and paid to A.O. Bayusuf. He further stated that the initial receiving advice number 119497 from Mombasa for fertilizer had been paid to A.O. Bayusuf and that two receiving advices had been attached for fertilizer transported from Mombasa to Kakamega via Chavakali. 68. PW4 further testified that a transport analysis sheet dated 9 June 2009, produced as Prosecution Exhibit 3(c), showed that receiving advice number 897949 had been processed under Benard Mwangi. He stated that A.O. Bayusuf’s payment did not include the altered receiving advice. He further identified another receiving advice number 173404, produced as Exhibit 7(j), which had similar https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 8

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alterations and which records showed was processed under Payment Voucher No. 165242, produced as Exhibit 7(m). He testified that cheque number 266073 dated 7 April 2009 was issued to the 4th accused in respect of that voucher, produced as Exhibit 7(n). 69. He further stated that Payment Voucher No. 165260, produced as Exhibit 9(q), for KShs. 493,339 was paid through cheque number 266070 to the 4th accused, and that he signed both cheques. He stated that an internal audit report was later submitted to him and that the monies paid to the 4th accused were subsequently recovered from his invoices. He concluded that officers responsible for verification before payment, as well as the 4th accused, were to blame for the alterations and loss suffered. 70. PW4 was cross-examined by Kiprono, during which he stated that he could not recall the exact date the 1st accused joined NCPB but confirmed it was in 2009. He stated that his role was to pass payments, that there were several checks and balances, that he confirmed correctness of amounts and availability of funds, and that he did not check all attached documents in detail. He stated that the altered documents were obvious when compared and that the monies in question were eventually recovered by NCPB, and that he could not take responsibility. 71. He was cross-examined by Mwilu, stating that the 2nd accused worked in the inventory section within the finance department and had not more than ten colleagues. He explained that payment vouchers had invoices, receiving advices, weighbridge letters and analysis sheets attached, that inventory preparation required stock records, receiving and dispatch advices, and that records at the time were not computerized. He stated that A.O. Bayusuf never complained of non-payment. 72. PW4 was cross-examined by Wambale, during which he explained the payment process, stating that documents were first received at the reconciliation section, endorsed and processed, then forwarded to the payment section where the 3rd accused worked, and that verification and analysis were conducted in accordance with a 1993 circular. He stated that inventory confirmation was done thereafter, that he also did some confirmation before signing vouchers and cheques, and that the 3rd accused, as head of his section, had verification responsibilities. 73. He was further cross-examined by Mr. Kanyi, during which he stated that he knew the 4th accused as a transporter entrusted with goods worth millions of shillings, that monies paid through the questioned invoices were recovered from the 4th accused, that he was not aware of any outstanding sums owed to him, and that accused persons would collect cheques already prepared. 74. Finally, PW4 was cross-examined by Ngaiywa, during which he stated that the 5th accused had been employed in January 2009, was on probation, worked as a clerk, and that her work was supervised and verified by other officers including himself. He stated that according to his statement, Nganga Maina and Ernest Ongwora verified the payment voucher the 5th accused was charged over, that he ultimately authorized payment, and that the only transaction involving the 5th accused was receiving advice number 597949 for Kakamega via Chavakali, for which no payment had ultimately been made and the lost money was recovered. 75. PW5, Joseph Kimutai Tuwei stated that he was an employee of the National Cereals and Produce Board and that in 2007 he served as the Silo Manager at Nakuru Silos. He testified that on 18 September 2009, a CID officer presented to him a receiving advice dated 23 March 2009 and requested him to confirm whether he had made the document and whether the alterations appearing on it were his. He stated that upon examining the document, he confirmed that he had indeed signed, stamped and received the receiving advice produced as Prosecution Exhibit 9(n). He observed that the receiving advice bore alterations on the transporter’s name and the date. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 9

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76. He further stated that he could see a dispatch advice and a corresponding receiving advice, produced as Exhibits 9(b) and 9(e), which he confirmed to be correct, and that the transporter involved in those documents was Summit CDF. 77. PW5 was cross-examined by Mwilu during which he stated that Exhibit 9(n) was altered and that although the alterations were countersigned, one could not tell the original details without comparing it with the other copy. 78. He was then cross-examined by Wambala where he stated that in his statement he had indicated that the alterations on Exhibit 9(n) were made by David Langat. 79. He was further cross-examined by Kanyi, during which he stated that the red copy of Exhibit 9(n) bore his stamp, signature and the date 23 October 2007, and that he maintained a register for such receiving advices. 80. PW6, Vincent Kitili Musyoki stated that he worked at NCPB as the Chief Cashier and held the same position in 2009. He testified that he knew all the accused persons, stating that the 1st, 2nd, 3rd and 5th accused were his colleagues at NCPB, while the 4th accused was a transporter. He stated that on 15 January 2008, one Joseph Rotich from the finance department transport section approached him requesting unpaid payment vouchers for Summit CDF. Rotich informed him that there were seven unpaid vouchers and that he intended to retrieve them for cancellation. 81. PW6 stated that he released the seven unpaid vouchers to Rotich and recorded the transaction in the register he maintained. He produced a certified copy of the relevant register entries dated 15 January 2008 as Prosecution Exhibit 9(h). He stated that the vouchers were never returned to him. 82. PW6 was cross-examined by Mwilu, during which he stated that Joseph Rotich was an accounts assistant at NCPB and was still employed there. He stated that he did not know whether the vouchers were later returned to him and that he had indicated in the register that they were collected for cancellation. He further stated that on 16 January 2008, other vouchers belonging to Roy Transporters were collected from him, but he did not record the reason for their collection since he had not been informed, unlike the earlier vouchers. 83. He was cross-examined by Wabale, during which he stated that unpaid vouchers did not require authority from the Chief Accountant for release, unlike paid vouchers, and that unpaid vouchers could be retrieved by the officer in charge of retrieving them. He stated that Rotich was not in court and that he was not aware of any fraud. 84. He was further cross-examined by Kanyi, during which he stated that Exhibit 9(k) indicated the date the vouchers were returned, that the register he maintained did not contain a column for voucher numbers, and that he did not have a register for vouchers he received. 85. PW7 George Gicharu Wachira stated that he worked as a clerk for A.O. Bayusuf and was based at the Nairobi office. He testified that on 29 April 2009 he was instructed to deliver invoices from Mombasa to the NCPB headquarters. One of the invoices was invoice number 39994 dated 28 April 2009 for the sum of KShs. 205,777.60, produced as Prosecution Exhibit 2(a), while the other invoices were not before the court. 86. He stated that the invoices related to fertilizer transported using motor vehicle registration number KBG 532A from NCPB Mombasa to NCPB Kakamega. He testified that prior to transportation he had inspected the documents, which included receiving advice produced as Prosecution Exhibit 2(b). He stated that upon arrival at Kakamega, the driver was instructed not to ofioad there but to proceed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 10

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to Chavakali NCPB, where another receiving advice was issued for the Kakamega–Chavakali delivery, produced as Prosecution Exhibit 3(a). 87. He stated that both receiving advices bore the name of their firm and were attached to the invoice. He further testified that he was later contacted by an NCPB security officer who informed him that their documents had been tampered with and showed him the receiving advice for the Kakamega– Chavakali leg, whereupon he noted that the transporter’s name had been altered from A.O. Bayusuf to Bernard Mungai. 88. PW7 was cross-examined by Mwilu, during which he stated that NCPB paid their invoice. 89. He was further cross-examined by Wambale, during which he confirmed that the transporter’s name was altered for the Kakamega–Chavakali trip. He was also cross-examined by Kanyi, where he stated that the receiving advice in issue had been attached to the invoice he delivered and that although he kept a register for invoices received, that register was not produced in court. 90. PW8 Susan Nyambura Otieno stated that she was an accounts clerk at NCPB headquarters in the inventory section. She testified that her duties involved receiving documents from depots, including Kakamega, and counterchecking them for verification. She stated that in May 2009 she received Dispatch Advice number 897949 dated 23 April 2009, produced as Prosecution Exhibit 4(d). She stated that she counterchecked it against stock records and confirmed that the transporter was A.O. Bayusuf and that it related to fertilizer transported from Kakamega to Chavakali. She filed the dispatch advice. 91. She later testified that a supervisor by the name of Joshua Langat requested her to produce the same dispatch advice for verification after a payment voucher had been rejected and a suspected double payment was being investigated. She stated that the dispatch advice was as she had originally received it. 92. PW8 was cross-examined by Kiprono during which she stated that she kept records upon receipt. 93. She was further cross-examined by Wabale during which she stated that her supervisor at the time was Mr. Mutua, followed later by Mr. Langat, and that Mutua was the 2nd accused. She stated that this was the first time she had heard of a rejected payment. 94. PW9, Josephine Malende stated that she was a clerk at NCPB headquarters inventory section. She testified that her duties involved receiving, verifying and filing documents from NCPB departments. She stated that in May 2009, a receiving advice number 897949 from Chavakali, produced as Prosecution Exhibit 4(a), was brought to her attention and that she filed the red copy after counterchecking it against stock records produced as MFI 4(b). She stated that both the receiving advice and stock records indicated the transporter as A.O. Bayusuf and that the documents were thereafter available for the paying officer to use in verifying the transporter’s invoice and payment. 95. PW9 was cross-examined by Mwilu during which she stated that documents were kept in cabinets which were normally not under lock and key and could be accessed by anyone. 96. PW10 Livingstone Marusoi stated that he was an accounts clerk at NCPB headquarters in the inventory section and handled documents from about sixteen depots, including Machakos. He testified that his duties involved receiving dispatch and receiving advices and counterchecking them against stock records. He stated that in February 2009 he received a receiving advice from Machakos depot bearing serial number 173404, produced as Prosecution Exhibit 7(j). He stated that he counterchecked the quantity, dates and transporter against stock records and found them to be correct, after which he filed the documents on the shelves. He testified that he was later transferred to Mombasa in March 2009 and returned to headquarters in May 2009, at which point he was informed that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 11

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receiving advice had been altered. Upon examining it, he noted numerous alterations to dates on the receiving advice and stock records, including changes from 04 January 2009 to 14 March 2009, 05 January 2009 to 15 March 2009, 06 January 2009 to 16 March 2009, 07 January 2009 to 17 March 2009, 08 January 2009 to 18 March 2009, 09 January 2009 to 19 March 2009, 10 January 2009 to 10 March 2009, 11 January 2009 to 11 March 2009, and 12 January 2009 to 12 March 2009. He further stated that the week-ending stock record date had been altered from 12 February 2009 to 27 March 2009. He testified that the vehicle registration number on the receiving advice had been altered from KBD 536N ZC 4555 to KAX 998 ZC, with some characters unclear, and that the transporter’s name had been altered from Barnaba to Bernard Mungai, with the date changing from 06 January 2009 to 16 March 2009. He stated that the book copies at Machakos depot were intact and unaltered. He recorded a statement with the police and stated that he was not involved in payments, which were handled by his supervisor Mutua, the 2nd accused. 97. PW10 was cross-examined by Kiprono during which he stated that there were about seven to eight officers in the office, that he left for Machakos in March and returned in May, that he could not recall handing over his files and had left them on the shelves, and that Mr. Langat informed him of the alterations. 98. He was cross-examined by Mwilu during which he stated that Mutua dealt with payments by checking whether documents appeared in inventory records and countersigning, but did not raise payment vouchers. 99. He was further cross-examined by Kanyi during which he identified the weekly stock record produced as Prosecution Exhibit 7(b), stated that he could not recall the exact date of receipt, that he recorded receipt dates in the system, and that he had forgotten to countersign the record. 100. He was finally cross-examined by Ngige during which he stated that the 2nd accused allocated duties, knew that he handled Machakos depot, that there was a deployment letter to that effect, that he did not hand over his files when transferred to Mombasa, and that the 2nd accused must have allocated the Machakos depot to another officer in his absence. 101. PW11 Nelly Chepkemoi stated that she was an employee of the National Cereals and Produce Board and worked as a depot records clerk attached to Eldama Ravine. She testified that her duties included keeping records, balancing stocks for all commodities and supervising staff under her, and that she had worked for NCPB since the year 1993. She stated that on 7 September 2009, CID officers went to her office in Nakuru and requested her to record a statement regarding a receiving advice document relating to CAN fertilizer with product code 7202. The document in question bore serial number 144922 and was produced as Prosecution Exhibit 9A. She stated that the CID wanted to establish whether she had posted the document on 23 March 2009. She explained that the relevant stock week had closed on 27 March 2009 and that upon checking the weekly stock records for the week ending 27 March 2009, the receiving advice number 144922 did not appear in their records. She testified that product code 7202 related to CAN fertilizer and that upon checking the number against the NCPB 8 weekly stock summary produced as Prosecution Exhibit 4E, the document did not appear. She further stated that NCPB 8 dated 26 October 2007 was produced as PMFI 11 and that the documents she was referring to related to the year 2007. 102. She testified that such documents are sent to inventory accounts at headquarters, with the headquarters being the custodian, while a copy is retained at the records office. She stated that Exhibit 9E related to 23 October 2007 and that Exhibit 9 was not recorded because it purported to relate to the year 2009, whereas the records showed it belonged to the year 2007. She testified that she did not deal with the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 12

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document in question in 2009 and that it had been posted in the records in 2007 and not in 2009. She recorded a statement and produced PMFI 11 as Prosecution Exhibit 11. 103. PW11 was cross-examined by Mr. Mwilu for the 2nd accused, during which she stated that in 2007 she was working at headquarters and did not post Prosecution Exhibit 9 in the records, and that she did not handle documents for the year 2007. She further stated that in 2009 she was working in Nakuru and did not work with the 2nd accused in Nakuru. 104. She was cross-examined by Mr. Wabale for the 3rd accused, during which she stated that she had worked with the 3rd accused at headquarters but in different departments, and that she left him at headquarters in 2009. 105. She was then cross-examined by Mr. Kanyi for the 4th accused, during which she stated that the documents were in their Nakuru files and that she gave them to the police, that she did not sign documents for the year 2007 and that the documents were written by her colleague Mr. Langat. 106. She was cross-examined by Mr. Kioko for the 5th accused, which resulted in no substantive questions. 107. In re-examination, she stated that the police had asked for the documents. 108. PW12, Nancy Kotut stated that she was a store clerk at Nakuru NCPB and had worked there for over ten years. She testified that her duties involved receiving consignments from other depots, storing them and handling documentation prepared in four copies, namely a black copy for inventory, a red copy for transportation, a green copy for the dispatching department and a brown copy which she retained. She stated that on 23 October 2007 she received a consignment from Changamwe depot consisting of 670 bags of CAN fertilizer weighing 50 kilograms each, transported by rail wagon number CLP12-56008, and that the consignment belonged to Summit CDF. She testified that she physically witnessed and received 650 bags together with an officer from Summit CDF. She recorded the receipt in stock card serial number 144921, produced as Prosecution Exhibit 9N, which bore her name and signature. She then forwarded the documents to the records office, from where they were sent to headquarters. 109. She further testified that on 7 September 2009, two officers came to her office with a document bearing dispatch advice number 144922 and asked whether she had seen it. She observed that the document was altered and that it reflected DAP fertilizer instead of CAN, produced as Prosecution Exhibit 9E. She stated that the alterations related to a change from CAN to DAP, with the product code altered from 7202 to 7201, and that the date had been altered to read 23 March 2009, whereas she had received the goods on 23 October 2007. She testified that she did not make the alterations appearing on Prosecution Exhibit 9N. She explained that any alteration must be countersigned by the person making it and reported to her manager, and that unsigned alterations would render a document unacceptable. She stated that she knew the 1st, 2nd and 3rd accused as colleagues, did not know the 4th accused, and had seen the 5th accused, meeting all of them in court and being informed they had worked at headquarters. 110. PW12 was cross-examined by Mr. Kiprono for the 1st accused, during which she stated that she had been told the 1st accused worked at headquarters. 111. PW13 Fredrick Joshua Langat stated that he was an accountant working in the finance department at NCPB headquarters and had worked for the board for approximately 25 years. He testified that he was in charge of store control and responsible for managing and accounting for stock. He stated that the case before court concerned payment to a transporter and confirmation of receipt of goods. He testified that he was presented with an invoice and supporting documents, including Prosecution Exhibit 9N, and that his role was to confirm their genuineness against stock sheets. He stated that upon verification, the documents were found to be in order and forwarded for further processing and payment. He testified that later, officers came to his office investigating payments made to the wrong person and that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 13

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the officer responsible for verification was to blame. He stated that Nicholas Mutua, the 2nd accused, was the officer who verified Prosecution Exhibit 9N. He testified that security officers took over the matter. He stated that he knew the 1st accused, Mr. Busienei, who worked in the payments section and did not report to him, and that the 3rd accused was also in the payment section. He further stated that the 4th accused was involved in payment matters and the 5th accused worked in another section. 112. He was cross-examined by Mr. Mwilu for the 2nd accused, during which he stated that he supervised the section, that Prosecution Exhibit 9N originated from a depot, bore code K65 and was dated 27 March 2009, and that it was a receiving advice acknowledging receipt of goods prepared at the depot and forwarded to headquarters via Securicor. He stated that the 2nd accused endorsed documents after checking them and forwarded them to the payment section, and that he himself did not recheck documents verified by the 2nd accused. 113. He was then cross-examined by Mr. Wabale for the 3rd accused, during which he stated that verification was completed before documents were forwarded to the 3rd accused for payment processing, and that the 3rd accused could not process payments for documents not appearing in inventory records. 114. He was cross-examined by Mr. Kioko for the 5th accused, during which he stated that Prosecution Exhibit 9N was verified in his section, that the 5th accused worked in the transport section under Mr. Maina and dealt with vouchers. 115. In re-examination, he stated that Prosecution Exhibit 9N bore the signature of the 2nd accused and that the 3rd accused was responsible for confirming receipt before payment. 116. PW14, Lilian Chemtai Towett stated that she was a stores clerk at NCPB Changamwe and had worked with the board for over 20 years. She testified that her duties involved receiving and dispatching goods using dispatch and receiving advices. She stated that in the matter before court she dispatched 560 bags of CAN fertilizer weighing 50 kilograms each from Changamwe, Mombasa, to Kakamega depot. She testified that she used dispatch advice serial number 119497, produced as Prosecution Exhibit 4G, and that the dispatch occurred on 20 April 2009. She stated that the truck used was registration number KBG 532A, driven by Mohamed Hamisi, and the transporter was A. O. Bayusuf. She testified that CID officers visited her office and that she recorded a statement. She stated that she personally altered and signed Prosecution Exhibit 4G. She testified that she did not know the 1st, 3rd, 4th or 5th accused, but knew the 2nd accused as a colleague. 117. PW14 was cross-examined by Mr. Mwilu for the 2nd accused, during which she stated that although she did not work with the 2nd accused at the same depot, she recognized him. 118. PW15, Joseph Kimutai Rotich stated that he was an accounts supervisor at NCPB Nakuru depot and had worked for the board since 1987. He testified that his duties included checking budgets and raising payment vouchers. 119. He stated that while on transfer in Mombasa, he received information that transport vouchers had been lost at headquarters. He testified that he was the one who had retrieved vouchers relating to Summit CDF transporters in order to cancel payment and instead issue fertilizer. He listed the vouchers retrieved, namely serial numbers 144918 dated 22 October 2007, 144919 dated 24 October 2007, 144920 dated 24 October 2007, 144921 dated 22 October 2007, 144922 dated 23 October 2007, and 144923 dated 24 October 2007, all relating to CAN fertilizer and produced as PMFI 12 to PMFI 17. 120. He testified that he prepared a credit note and that the transporter was issued fertilizer under sales order number 827678. He stated that an invoice dated 30 October 2007 for transport of CAN fertilizer for KShs. 781,014 was produced as Prosecution Exhibit 9H, and that 589 bags of fertilizer were issued. He produced correspondence dated 6 December 2007 and 5 December 2007, produced as PMFI 18 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 14

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and PMFI 19, authorizing issuance of fertilizer instead of cash payment, and a miscellaneous receipt number 451242 dated 6 December 2010, produced as PMFI 20. He testified that police later informed him that the documents had been used to claim payment fraudulently. 121. He further produced PMFI 12 to PMFI 20 as Prosecution Exhibits 12 to 20. He further testified on credit notes serial numbers 036702 to 036710, all dated 13 May 2008, with amounts including KShs. 1,436,378, 190,672, 263,858, 1,418,837, 2,660,064, 2,203,570, 2,371,110 and 1,950,904, produced as PMFI 21 and PMFI 22A to 22H, and stated that they were checked and signed by Anderson Nganga Maina before goods were released. 122. PW15 was cross-examined by Mr. Kiprotich for the 1st accused, during which he stated that he worked with the 1st accused at headquarters in 2009 and that the 1st accused joined in January 2009. 123. He was cross-examined by Mr. Wabale for the 3rd accused, during which he stated that the 3rd accused was his boss, instructed him to retrieve the vouchers, and authored the letter endorsed by Ngelechei, and that the Chief Cashier was Mr. Musyoki. He stated that the vouchers were retrieved on instructions from the 3rd accused. 124. He was then cross-examined by Mr. Kioko for the 5th accused, during which he stated that the 5th accused worked briefly with him, received and analyzed documents, and that transport analysis sheets originated from headquarters. In re-examination, he stated that the late Kiprono Arap Keter did not deal with the documents and that the 3rd accused signed them. 125. PW16, Joseph Langat stated that he was a records clerk at NCPB Nakuru and had worked for 30 years. He testified that on 23 October 2007 fertilizer was received from Changamwe, Mombasa, by rail wagon CLPR-56008 belonging to Summit CDF, consisting of 670 bags of CAN fertilizer, and that the consignment was received under receipt number 144922 produced as Prosecution Exhibit 9B. He stated that the receiving advice was prepared by the clerk and recorded in daily stock records under NCPB 7 and summarized weekly under NCPB 8. 126. He testified that in 2009 they were asked whether fertilizer had been received using the same document, and he clarified that the receipt had already been used in 2007 and could not be reused in 2009. He testified that Prosecution Exhibit 11 contained details of Prosecution Exhibit 9B and that serial numbers could not be repeated. He stated that the weekly stock record summary produced as Prosecution Exhibit 9C related to the period 4 October 2007 to 11 November 2007 and confirmed that no fertilizer was received under that receipt in 2009. He stated that he did not know the 1st, 4th or 5th accused, but had worked with the 2nd and 3rd accused at headquarters. 127. PW17 Pasilisia Kabera testified in Kiswahili that on 23rd April 2009, she received a transfer of 560 bags of CAN fertilizer from Kakamega NCPB destined for Chavakali. The transporter was A.O. Bayusuf, and the truck number was KBG 352A. She filled the receiving advice, confirming the quantity and origin, matching it to dispatch advice DA No. 897949, producing the receiving advice as PExhibit 4A. When police questioned her, she noticed a discrepancy: the fertilizer was actually from Changamwe Mombasa, documented in PExhibit 2A. Lesonia Osama, a clerk from Kakamega stores, handled the original document. She did not know any of the accused. 128. PW18, Monica Kambucha, a copy typist at NCPB Head Office Industrial Area in 2009, explained her duties involved preparing cheques for customers, staff, and transporters. She prepared cheques PExhibit 7A and PExhibit 9S for Benard Mungai, a transporter, without knowing the underlying reason for payment. She recognized all accused persons: Accused 1 worked in the payments office preparing vouchers, Accused 2 in the voucher checking section, Accused 3 in the payments office, Accused 4 as a transporter whose cheques she handled, and Accused 5 in the payment section. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 15

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129. PW19 Abedinego Sangoro, a credit officer at NCPB head office in 2009, described his duties including verifying invoices with supporting documents, ensuring transporters were registered, and forwarding approved invoices to the Chief Accountant. He handled invoice No. 078 (PExhibit 3B) for Benard Mungai, endorsed it, and forwarded it to the clerk for further processing. He noted that documents PExhibit 4A, PExhibit 3A, and PExhibit 4D had the same serial number, 897949. Alterations were noted on the receiving advice (PExhibit 3A). Accused 1 was a colleague in transport accounts preparing payment vouchers, Accused 2 in inventory accounts checking stores, Accused 3 supervised transport, Accused 4 was the transporter, and Accused 5 served in the same capacity as Accused 1. 130. PW20, Earest Muturi Ogwora, Operations Manager at NCPB Head Office in 2009, explained his role in transportation, raising transfer orders, ensuring registered transporters ferried cargo, and verifying supporting documents for payment. On 10th June 2009, he processed payment voucher No. 17953 dated 9th June 2009 for Kshs. 363,615. The R.A. No. 897949 was altered to show Benard Mungai instead of the original transporter. He could not detect the alteration due to the volume of daily dispatched vehicles but confirmed verification would have identified the mismatch. Accused 1 was unknown to him, Accused 2 worked in NCPB transport and finance, Accused 3 was an employee, Accused 4 was the transporter, and Accused 5 he could recall. 131. Upon cross-examination by Mr. Kiprono for Accused 1 clarified that his department approved transport and payments but detailed verification was not his duty. 132. In re-examination he clarified that altered documents could pass four sections without detection, and the critical scrutiny was done in the inventory department. 133. PW21, Caroline Cherono Kipchoge, an accounts clerk at NCPB in 2009, explained her duties involved reconciling stock records with dispatch and receiving advice. On 6th October 2009, she recorded a statement with CID regarding Receiving Advice No. 144922 (PExhibit PMFI.9E) relating to 670 bags of CN fertilizer transported from Changamwe to Nakuru by Summit CLPR56008. She noted the same serial number appeared in PMFI.9B (dispatch advice), but PExhibit 9N showed a different transporter, Benard Mungai, and 720 bags of DAP fertilizer, indicating alteration. Accused 1 was in the payment section, Accused 2 in inventory, Accused 3 in payments, Accused 4 unknown, and Accused 5 in head office payments. 134. PW22, Simon Kamau, Regional Manager and Assistant Operations Manager in 2009, testified about registration, coordination, and payment of transporters, describing the transfer order and dispatch/ receiving advice process. DA and RA had matching serial numbers (PMFI.9B and PMFI.9E), with one copy retained by the transporter and another by the depot. He identified alterations where Summit Cov was replaced with Benard Mungai, CAN fertilizer with DAP, and the vehicle number was altered. He confirmed that the documents passed through inventory, operations, and finance departments before payment. Payment voucher No. 165260 for Kshs. 493,339 to Benard Mungai was based on altered Receiving Advice No. 144922 (PExhibit 9N), whereas the green copy (PExhibit 9E) correctly indicated Summit Cof Lines of Box 8865 Mombasa. He identified roles of accused persons: Accused 3 as transport accountant raising vouchers, Accused 2 as inventory accountant responsible for verifying documents, Accused 1 in accounts section reviewing payment vouchers, Accused 4 as the registered transporter, and Accused 5 as an accounts clerk. 135. In cross-examination by Mr. Kiprono for Accused 1 confirmed he could not detect alterations during authorization. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 16

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136. Mr. Wabale for Accused 3 confirmed Accused 3’s duties included pre-audit and computation of payments based on submitted documents. Mr. Kioko for Accused 5 confirmed her role was in the payment section, and she would not detect alterations. 137. PW23 stated that he is No. 51713, Sergeant Joseph Ngila Ndambuki, based at DCI Kirinyaga West. In the year 2009, he was stationed at the CID headquarters, Economic and Commercial Unit. On the 16th of October, 2009, he was requested by Chief Inspector Ndolo to prepare an affidavit to be sworn in court. The affidavit was intended to investigate Account Number 1107167679 at KCB in the care of the National Cereals and Produce Board, domiciled at Moi Avenue Branch under Miscellaneous 785 of 2009, marked PMFI.23. He was seeking to be furnished with bank statements for the month of April 2009. Two cheques were involved in this investigation: cheque number 266070 dated 2nd April 2009 for Kshs. 493,339 and cheque number 266073 dated 2nd April 2009 for Kshs. 264,789, both payable to Benard Mungai. On the 23rd of October, 2009, he prepared an affidavit to investigate account number 0690292643781 in the name of Red Mark Enterprises domiciled at Equity Bank, vide Miscellaneous 843 of 2009, marked PMFI.24, requesting certified bank statements for April 2009. Orders were granted, and he proceeded to the banks. At KCB, he obtained the documents and the original cheques. PExhibit 70 was the bank statement where the account holder was NCPB. PExhibit 7N and PExhibit 9S were the cheques payable to Benard Mungai. For Equity Bank, he received the statement of account number 0690292643781 in the name of Red Mark Enterprises for April 2009, marked PMFI.25. All documents and affidavits were taken to Chief Inspector Ndolo, and the applications PMFI.23 and PMFI.24 were produced as PExhibit 23 and 24 respectively, and PMFI.25 was produced as PExhibit 25. The witness stated that he only saw the accused persons after the investigations had been concluded. 138. PW24 Richard K. Kirui, residing in Bomet, retired and now a farmer. Stated that he was employed at the National Cereals and Produce Board from October 1986 until December 2017 as a verification accountant. His duties included checking the correctness of vouchers, examining payment vouchers, attachments to vouchers for transport, invoices, receiving advices, red copies used to make payments, and ensuring all documentation was properly certified. On the 2nd of April, 2009, he verified voucher number 165260, dated 30th March 2009, marked PExhibit 9C, confirming the rate applied, distances, arithmetic correctness, and signatures, and found the amount payable, Kshs. 493,339, to be correct. The voucher was then passed to the cash office. 139. He also verified voucher number 165242, dated 31st March 2009, marked PMFI.7M, confirming the signature, amount, and weight in the voucher and analysis sheet, with Kshs. 264,789 payable, and it was passed to the cash office. Another voucher, number 165936, dated 4th May 2009, marked PMFI.2E, was examined for proper signatures, weights, quantities, rates, and distance calculations. During this verification, anomalies were discovered. The receiving advice number 897949, marked PExhibit 3A, showed rubbings and cancellations. The transporter’s name, Benard Mungai, had been rubbed and rewritten, whereas the original document indicated A.O. Bayusuf as the transporter with lorry registration KBG-43532, while the altered document indicated KBG 532A ZC 8664. These alterations extended to vouchers number 165242, marked PExhibit 7U, and 165260, marked PExhibit 9Q, where similar manipulations in transporter names and vehicle registrations occurred. Payments were made to Benard Mungai in place of the intended transporters A.O. Bayusuf and Bajabal. The witness identified five accused persons: Accused 1 was a clerk with the payments accounts section; Accused 2, Mutua, worked in the inventory section; Accused 3, Anderson, was the payment accountant; Accused 4 was the transporter; and Accused 5, Rosemary, was a clerk at the payment section. 140. During cross-examination by Mr. Kiprono for Accused 1, the witness clarified that he was the last person to check vouchers before payment, and he did not notice alterations at that stage. Alterations https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 17

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became apparent after the third voucher was found altered, prompting intensified verification. By the time of the first two vouchers, they had already passed for payment. 141. Cross-examination by Mr. Mwilu for Accused 2 and Accused 4 established that all supporting documents, invoices, and attachments were present in the cancellation department, including red and black copies of receiving advices and dispatch advice. He further clarified that he followed instructions on what to check and did not initially query the rubbings. 142. Cross-examination by Mr. Webale for Accused 3 and Accused 5 highlighted that Accused 3, the payment accountant, prepared analysis sheets recording transporter documents, rates, and distances, which were checked and confirmed. The verification section, under Chief Accountant, was responsible for final checks. 143. Cross-examination by Mr. Bwire holding brief for Kanyi for Accused 5 confirmed that Accused 5, Rosemary, worked under Maina and noted inconsistencies in documents but did not make alterations herself. 144. PW25 Antipas Nyancwa, currently Director of Investigations and Services at the National Land Commission, and previously a forensic document examiner at CID Police Department for over 19 years, holding a master’s degree in criminology and forensic science. On 4th November 2009, Chief Inspector Ndolo brought ten questioned documents marked A1 to A10, and six sets of specimen signatures marked B1–B204 for comparison. The witness examined these disputed documents against the known signatures, marked C1–C36. He concluded that signatures for Stephen Businei, Nicholas Kimanthi, Anderson Maina, and Rosemary Kittony were similar and distinguishable from the disputed documents. Benard Mungai’s signatures did not match on certain disputed documents except in one instance, and all others showed no agreement with the accused persons. He produced his report as PExhibit 37B, detailing the methodology, characteristics, and basis of his conclusions. 145. During cross-examination by Mr. Kiprono for Accused 1, PW25 confirmed that the report was prepared on 12th April 2010 and submitted in November. The disputed documents A1, A2, A7, and A8 related to Stephen Businei, and the examination was done using memo forms for comparison. He did not verify whether the disputed entries were altered. 146. PW 26 Chief Inspector Fidelis Ndolo, No. 216162, based at Kiambu CCIOs office, and in 2009, he was stationed at CID headquarters, Economic Crimes Unit. He stated that on 20th August 2009, he was instructed by Mr. Muinde to investigate a National Cereals and Produce Board case concerning theft of Kshs. 265,080.30 due to altered receiving advices that redirected payments to Benard Mungai. He collected payment vouchers including number 165260, marked PMFI.9, and corresponding invoice 039, marked PExhibit 9R. Receiving advices 058594, 309686, 320627, and 320629 were attached. The bundle was marked PMFI.38A, B, C, and D. He discovered that receiving advice 144922 dated 23rd March 2009, included in the transport analysis sheet, was not attached to the original invoice from Summit Coff. Summit Coff had transported 670 bags of CAN fertilizer from Mombasa Changamwe Depot to Nakuru Depot, invoiced under number 1867 dated 30th October 2007, PExhibit 9H. Original receiving advices were misappropriated and later appeared attached to payments for Benard Mungai. 147. The investigations included various invoices, stock cards, weekly stock reports, and transport analysis sheets prepared by Stephen Kiprotich Businei and confirmed by Nicholas Mutua. The payments in April 2009, totaling Kshs. 264,789 and Kshs. 493,339, were debited from NCPB KCB accounts and credited to Benard Mungai, as documented in PExhibit 7D and vouchers PExhibit 9S and PExhibit 7N. Specimen signatures were collected and produced as PExhibit 25–36, and other documents marked PExhibit 38–48. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 18

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148. Cross-examination by Mr. Kiprono for Accused 1 revealed that the accused was charged on 5th October 2009, after document examiner reports were received. Accused 1, a clerk two months into employment, was responsible for preparing dispatch vouchers but relied on other officers for confirmation of stock and voucher genuineness. The accused was suspended upon being charged and had no authority to alter return advices. 149. Cross-examination by Mr. Nakhole for Accused 2 clarified that the transport analysis report originates from clerks in the inventory section. Dispatch advices originate from depots where goods are sent, and notices to produce documents were issued accordingly. 150. The cross-examination by Mr. Webale for Accused 3 explained that Accused 3, as inventory accountant and section head, was responsible for tabulating distance, cost, and maintaining schedules, ensuring documents were properly filed. Changes in tabulation figures were noted, but the document examiner would determine whether alterations occurred. 151. Cross-examination by Mr. Gitari for Accused 4 confirmed that the accused was registered as a transporter, and the spreadsheet showing transporters was provided to him. The accused received multiple cheques for transport services but did not transfer funds to other accused persons. 152. Cross-examination by Mr. Bwire for Accused 5 confirmed that the accused clerk, working under Anderson Maina, prepared transport analysis sheets and identified inconsistencies in receiving advice 897949 showing dispatch from Kakamega to Chavakali, and informed her superior. THE DEFENCE CASE 153. DW1 Stephen Kiprotich Busienei, who is accused 1, testified that he was employed at the National Cereals and Produce Board (NCPB) on 12th January 2009, pursuant to an appointment letter dated 31st December 2008, which he produced as DExhibit 1. His employment contract, produced as DExhibit 2, confirmed his reporting date. He underwent a two-week induction before being posted to the payment section by a posting letter dated 11th February 2009, produced as DExhibit 3. DW1 stated that his duties included raising and preparing payment vouchers, computing and submitting VAT payments for suppliers, and that he only assisted the transport section by recording lorries for fertilizer and cereal transport, without being officially posted there. 154. He explained that payments to transporters were initiated through vouchers and receiving invoices, which were checked by the office for accuracy, signed, and forwarded to the chief accountant for verification. Once approved, the transport accountant, in this case accused 3, Anderson Nganga Maina, would instruct clerks and supervisors to process payments, generating analysis sheets, followed by checks from the inventory section, operations management, management accounting, and the office of the chief accountant before reaching the cash office for the transporter to collect the cheque. 155. DW1 stated that the disputed transport analysis sheet dated 30th March 2009, PExhibit 9O, and the transport analysis sheet dated 31st March 2009, PExhibit 7L, were computer-generated, which he did not create, and that his role was limited to checking attached documents before signing. He confirmed that he never collected any payment on behalf of any transporter, including sums of Kshs.150,000 (Count III) or Kshs.90,066 (Count VI), and did not receive funds from Mr. Benard Mungai. 156. During cross-examination, prosecution counsel questioned DW1 about PExhibit 7M and PExhibit 9Q, both payment vouchers bearing his signature, and RA No. 144922 attached to PExhibit 9M, highlighting alterations naming Benard Mungai as transporter. DW1 maintained he relied on supplied documents and signed in good faith, unaware of any alterations. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 19

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157. On re-examination, DW1 stated that PExhibit 9N had been altered without his knowledge and that his section was not responsible for document genuineness, which was handled by a dedicated office. 158. DW2, Nicholas Mutua Kimanthi, accused 2, testified that he was employed at NCPB in May 1985 as an accounts clerk and was later promoted to supervisor in October 1994, with a supervisory increment dated 4th June 1998, produced as DExhibits 5, 6, and 7. DW2 described his duties in the inventory section, where he compared receiving advices (RA) from depots with transport analysis sheets to ensure the goods tallied. He explained that blank RAs accompanying dispatch advices (DAs) from depots were completed at the receiving destinations and then submitted to NCPB for verification. His role did not include issuing or altering vouchers, only ensuring the serial numbers and quantities matched. 159. He produced circulars dated 24th November 1997 and 30th May 2007 as DExhibit 8 and DExhibit 9, confirming procedural instructions for comparing RAs. Regarding the charges, DW2 denied obtaining any money or altering any documents, explaining that his signature on analysis sheets only confirmed tallying and genuineness. His transfer letter dated 7th September 2009 was produced as DExhibit 10. 160. During cross-examination, prosecution counsel questioned DW2 on PExhibit 9Q and PExhibit 7J RA, to which DW2 explained that he had never seen these documents and was not supervising accused 1, confirming that his responsibility was limited to comparing documents for accuracy. 161. On re-examination, DW2 reiterated that his section did not verify transport vehicles or payment authorizations, only that documents tallied correctly. 162. DW3, Anderson Nganga Maina, accused 3, who was the transport accountant at NCPB, testified that he was employed at NCPB since 1986 and had served in various capacities including mobile cashier, and permanently after 1991. He produced his deployment letter dated 12th June 2008 as DExhibit 11. His role involved supervising accused 1 and accused 5, verifying mathematical accuracy in payment vouchers, reconciling transport invoices, generating schedules, comparing with daily analysis sheets, and ensuring the operations manager authorized payments. He referred to a reconciliation circular dated 9th July 2001 as DExhibit 12 and a circular dated 30th May 2007 as DExhibit 9, detailing procedural mandates. DW3 denied obtaining any money for himself or any other accused, asserting that money lost was recovered from pending transporter invoices. He confirmed authority to prepare and supervise transport analysis sheets and payment vouchers, while adhering to the circulars and internal NCPB procedures. 163. During cross-examination, prosecution counsel questioned DW3 about PExhibit 2A and PExhibit 3A showing 560 bags of fertilizer transported from Mombasa to Kakamega, alleging alterations to the transporter’s name, Benard Mungai, and vehicle KBG 532A. DW3 explained that alterations did not originate from his section and that documents passed through his office in batches to inventory, including accused 2, before archiving. He confirmed signing PExhibit 7M and PExhibit Q to indicate procedural compliance. 164. On re-examination, DW3 reiterated that RAs did not originate from his section and that tabulation of documents was appropriate. 165. DW4 Benard Mungai, testified in Kiswahili that he was a transporter registered in 2009, operating over 30 vehicles. He stated that he collected receiving advices from depots, prepared invoices for work records, and submitted them to NCPB, but had no role in payment processing. Regarding Count III and Count VI, he denied requesting or receiving any payments and stated that he did not pay any employee for favours. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 20

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166. The cross-examination explained PExhibit 25, showing NCPB payments to his company, and PExhibit 3A displaying KBG 532A; DW4 testified that he had not altered the RA and had no knowledge of alterations. 167. On re-examination, he confirmed that he did not write PExhibit 3A. 168. DW5 Rosemary Moiti Kitony, testified that she was employed at NCPB from 12th January 2009 until her suspension on 13th October 2009, produced as DExhibit 13. She worked as accounts supervisor, preparing analysis sheets and payment vouchers under supervision of Anderson Nganga Maina. She explained that she received RAs, DAs, vouchers, and invoices, compared them, and prepared the voucher after completing the analysis sheet. Regarding Count VII and Count VIII, she stated she was authorized to prepare documents, and any payment authorization passed through her supervisor. She produced her response to the suspension letter dated 14th October 2009 as DExhibit 14. 169. During cross-examination, DW5 confirmed that she processed documents received in batches and relied on RA documents to prepare payment vouchers, noting that PExhibit 7M and DExhibit 3A had undergone alterations outside her control. She clarified that she did not authorize payments, only prepared and checked documents under supervisory authority. 170. On re-examination, she emphasized that PExhibit 7M was not signed by her and originated from other departments, reaffirming her limited procedural role. Analysis and Determination 171. The duty of the fist appellate court is to review, re-evaluate and examine the evidence recorded by the trial court with a view to satisfying itself as to whether the findings by the trial court were supported by the evidence and the law. As a first appeal, the matter takes the from a re-hearing though unlike the trial court the judge does not get to hear or see the witnesses testifying. The court is however expected to draw its own conclusions based on the analysis of the evidence and it is by no means bound by the findings of the trial court. 172. In Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows: “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.” 173. When I retired to write the judgment and after careful analysis of the evidence and the submissions by the parties it became apparent the judgment delivered by the learned Honorable magistrate did not meet the requirements of Section 169 of the Criminal Procedure Code and therefore the same is fit for quashing and setting aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 21

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174. The learned Honorable magistrate convicted the two appellants without stating in the judgement the charge that each one of them was convicted for and failed to state the particular Section of the Penal Code creating the offence. 175. The learned honorable magistrate did not also sentence each of the appellants separately and in respect of each count for which they were convicted. 176. The judgment therefore offends the provisions of Section 169 of the Criminal Procedure Code which states: Contents of judgment (1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it. (2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code (Cap. 63) or other law under which, the accused person is convicted, and the punishment to which he is sentenced. (3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty. 177. The ingredients of a judgment as set out under this Section are mandatory requirements that the trial court must ensure are properly set out in the judgement. Any deviation from the procedural requirements renders the judgments incompetent and of no legal effect. 178. The failure to observe the provisions of 169 of the Criminal Procedure Code is not a curable defect under Section 382 of the Criminal Procedure Code for such a defect certainly would prejudice an accused person. An omnibus conviction makes it impossible for the appellate court to determine the specific count that the trial court had convicted the appellant for and also the sentence imposed in respect of each count. 179. This is particularly important on appeal because the appellate court may come to the conclusion that certain counts were established or not established. The determination would be followed by either quashing or upholding the conviction as the case may be. This can only happen where the trial court renders itself with specifity as envisaged under Section 169 of the Criminal Procedure Code. 180. The failure to observe the statutory requirement of a judgment renders the judgment invalid making it susceptible to quashing and setting aside by the appellate court. 181. In George Muderwa Vs Republic Criminal Appeal No.11 of 2017 the court in dealing with a similar situation had this to say;“ The decision is bereft of the ingredients of a carefully considered judgment and does not comply with the mandatory requirements of section 169 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) which provides as follows: 169 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 22

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(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, shall contain the point or points for determination, the decision thereon and the reasons, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it. (2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced. (3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty. 5. It is also clear that trial magistrate failed to comply with section 169(2) and (3) of the Criminal Procedure Code. He did not state or specify the counts on which the appellant and his coaccused were either convicted or acquitted. In James Nyanamba v Republic [1982 – 88] 1 KAR 1165 [1983]eKLR the Court of Appeal expressed following view; “Again the magistrate transgressed subsection (2) of section 169 of the Criminal Procedure Code which requires that in the case of a conviction, the judgment must specify the offence of which and the section of the Penal Code or other law under which the accused person is convicted. Since in his opening statement of the judgment, the magistrate did not state which accused was charged alone in which count of the counts 3 and 4 it cannot be said that the omission to comply with section 169(2) (ibid) did not occasion the appellant injustice. In the circumstances of this case that omission is not cured by section 382 of the Criminal Procedure Code. For all intents and purposes, there was no judgment contemplated in law hence I have no option but to quash the conviction and sentence.’’ 182. In the instant appeal it is the finding of this court that the judgment of the trial court amounted to nothing because of the breach of the provisions of Section 169 of the Criminal Procedure Code and is hereby quashed. 183. The question that arises and which this court must address is whether in the circumstances of this case, a retrial should be ordered. This court has reflected on the issue of a re-trial and without doubt several factors militate against ordering a re-trial in this case. 184. Firstly, the appellants were charged and arraigned in court on 5th October 2009 and their trial was concluded on the 28th October 2021 which period approximately amounted to 13 years of trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 23

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185. The appeal has been pending in this court since 2021 which is approximately another 5 years of waiting. To require a man who has spent close to 18 years in the corridors of justice to go back for a re-trial would be a great travesty of justice more so considering that the appellants had no control over the long period taken and taking into account that the mistake leading to the quashing of conviction and sentence was entirely that of the court. 186. Secondly, the appellants have put a very strong case touching on the sufficiency of evidence relied on by the trial court to convict. This court is aware that if a retrial was to be ordered in the circumstances that would open a window for the prosecution to embark on filling gaps in their evidence. The law is that in such situations a court should not be inclined to order a re-trial. 187. Thirdly, it is highly improbable that the prosecution witnesses would be readily found to give evidence if this court were to order a re-trial. The length of period taken to prosecute the matter in the Lower court tells it all. 188. The trial court by failing to comply with the provisions of Section 169 of the Criminal Procedure Code in the writing of its judgment fell into the error on procedural non compliance noted by the Court of Appeal in Degow Dagane Nanow vs. Republic, Criminal Appeal No. 223 of 2005 at Nyeri (unreported), stated thus:“ ……………It is the responsibility of trial court to ensure compliance with these provisions. Trial courts are not only obliged to ensure compliance with the provisions; they are also obliged to show in their records that the provisions have been complied with. There is no reason why a trial court should leave an appellate court to presume that the provisions must have been complied with while it can easily be demonstrated by the record that compliance did in fact take place…………..” 189. The consequences of failing to comply with the Criminal Procedure cannot be visited on an innocent appellant through an order for a retrial.In Fatehali Manji vs. The Republic [1966] E.A. on retrial the appellate court had this to say:“ In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interest of justice require it.” 190. The circumstances of this case militate against an order for a re-trial for the reasons advanced in this judgement. 191. Accordingly, the conviction against the appellants is hereby quashed and the sentence set aside. The fine paid by the two appellants shall be refunded to the depositors forthwith. 192. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF FEBRUARY, 2026. A. M. MUTETI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 24

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In the presence of: Habiba: Court Assistant Kiprono for 2nd Appellant Webale for the 1st Appellant Ms Ogega for Respondent Appellants: present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11738/eng@2026-02-17 25

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